ALLEGANY – An appeal filed by Everpower Wind LLC. against the Allegany Town Planning Board was recently dismissed by a state judge.

In its decision to dismiss the appeal, the Appellate Division of the Fourth Judicial Department based part of its determination on Everpower “considering use of alternate wind turbines for the proposed 29-wind turbine farm.”

The court also rejected Everpower’s contention that a lawsuit that had been filed by Concerned Citizens of Cattaraugus County had made it impossible for the company to obtain financing for the project, thereby delaying construction.

The $160 million wind farm was approved in 2011 by the Allegany Town Board for the hilltop areas of Chipmonk and Knapp Creek. The project was initially delayed by [a] Concerned Citizens’ lawsuit, which was dropped in July 2012.

Everpower also filed two lawsuits against the town in 2013, with one dismissed by Cattaraugus County Judge Michael Nenno in February 2013. Everpower then appealed Judge Nenno’s dismissed lawsuit.

While Everpower officials could not be reached for comment Monday, Allegany’s supervisor, John Hare, said, “The town is very pleased to learn that the court of appeals in Rochester unanimously affirmed the decision handed down last year by Judge Nenno.

“Ever since the appeal was filed by Everpower last year, all the town could wish for was that Judge Nenno’s original decision would be substantially upheld – and now it has been without reservation,” Mr. Hare said. “At this point in time, we do not know what Everpower’s plans might be in light of Friday’s decision. The town will have no further comment at this time.”

The state Supreme Court’s dismissal of Everpower’s appeal was provided in a three-page document. In its decision, the court stated that it rejected the company’s “contention that the denial by (the town) of its request for an extension of the special use permit was arbitrary and capricious.”

The court stated that Everpower had advised the town that it was “considering use of alternate turbine models” for the project, and later requested a second extension of the special use permit.

The court rejected this claim, noting there was a material change in circumstances since the initial special use permit had been issued. The court explained that when the special use permit was granted in 2011, Everpower had contemplated the use of the 492-feet Nordex N1000 turbines. Everpower officials later proposed to integrate the larger N117 model turbines into the project, prompting board members to request that the company provide a modified project and address a zoning issue.

The court stated the use of the alternate turbines also would result in noncompliance with the town’s noise setback requirements.

In its ruling, the court noted Everpower’s contention that Concerned Citizen’s lawsuit delayed construction was not the “primary reason for (Everpower’s) failure to proceed with the project in a timely manner.”

Instead, the court indicated the “petitioner did not go forward with the construction in large part because it was waiting to find out whether Congress was going to extend the Production Tax Credit (PTC) for wind energy” that was scheduled to expire.

Others who commented on the court’s decision included Kathy Martin, spokesperson for Allegany F.R.E.E., a community group that supports the wind project.

“I just found out about the decision myself a little while ago, and have not had an opportunity to speak with anyone from Everpower yet to see what their plans are for the project,” Mrs. Martin said. “I expect to be conferring with Everpower officials in the next couple of days.”

Kathy Boser, president of Concerned Citizens, said she and others with the group were pleased with the court decision.

“(Concerned Citizens) is grateful to the town’s planning board for having not succumbed to Allegany Wind’s disingenuous offer to discontinue their worthless litigation in return for unwarranted and undeserved concessions by the town,” Mrs. Boser said.

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